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Archive: Aug 2016

The vast majority of laws in this country are public laws. This means that they apply equally to the entire public. Everyone who violates the law is equally subject to the same consequences. Everyone is entitled to use the same legal defenses and to claim the same rights and legal remedies because they are “Public Laws”. Although each individual must still prove that he/she qualifies for the benefit of a public law, it is available to everyone. For example, the law of negligence allows every person that proves that he/she was injured by the negligence of another is entitled to just compensation.

The Constitution of the United State also permits private laws to be enacted. Although few members of the public are aware of private laws, they can be very useful to people that successfully persuade the U. S. Congress to pass a private law. Private laws are laws that benefit only one person or small group of people in special situations or circumstances. Imagine what it would be like if the U. S. Congress passed a law that gave you a legal right to do something that the public laws deny to you. In fact over 7,300 private laws have been enacted since they were first authorized in 1839.

President Obama signed two private laws in the past few years to benefit only the individuals named in those laws. In the first case, the law granted permanent legal immigration status to the widow of a U. S. Marine who gave birth to their son after he was killed in Iraq. In the second case, a man in California was given permanent legal immigration status because his mother was killed in a car accident before adopting him. In each of these cases, the named beneficiaries of these private laws did not qualify for legal immigration status under our immigration laws.

While private laws can be used for other special circumstance situations, immigration cases are the most common. Anyone seeking to have a private law enacted must find a member of Congress (Senator or Congressman/Congresswoman) that will introduce the private law and sponsor it. Then the private law must go through the same process as public laws. It must be approved by the Senate and the House of Representatives and signed by the President.

The introduction of a private immigration law to grant permanent legal status to a person facing deportation does not automatically stop the deportation. However, Immigration Officials will usually suspend deportation proceedings if the Congressional sponsor requests it in writing. The Senator or Congressional Representative that introduced the private law must produce evidence that it is necessary to avoid “Unusual or Extreme Hardship” to the beneficiary or a U. S. citizen spouse, parent, or child.

Recent private immigration laws have been enacted to benefit people that do not qualify under public laws through no fault of their own. Examples include errors or excessive delays by government agencies processing applications or petitions. While only exceptionally compelling cases that involve extreme hardship are approved, private laws can be successful for certain people. ¡NO SE DEJE! ®

Uber, the popular modern alternative to regulated taxicab services, has been the hot trend for people in need of a chauffeur for the last few years. Many speculate that Uber is poised to overthrow taxis as the ride-sharing service of choice across America, but this success hasn’t come without pitfalls, mostly in the form of lawsuits against the company and its drivers for negligence and alleged acts of driver violence. Now, Uber faces a new class action suit – not from its customers, but from its drivers.

Uber’s Major Misclassification

Uber is no stranger to lawsuits. In the mere three years that Uber has been a peer-to-peer taxi service, it’s been in dozens of cases involving alleged assaults, sexual harassment, and kidnappings by drivers. Uber and Lyft together have been involved in the deaths of at least 16 people. The difference in the latest lawsuit is that Uber customers aren’t the plaintiffs. Instead, Uber’s own drivers are filing a class action suit on the basis that the company classifies its more than 300,000 drivers in California alone as independent contractors instead of employees.

This misclassification has allowed Uber to avoid financial obligations, including paying unemployment insurance, Social Security, workers’ compensation, and other important benefits. The company also doesn’t have to reimburse employees for work-related costs such as gas, vehicle maintenance, highway tolls, and health insurance. Had Uber correctly classified its workers as employees, the law would require the company to provide these payments and benefits.

Drivers also allege that Uber doesn’t pay employees living wages in exchange for work they perform. Many claim that Uber has thus far gotten away with all this by classifying itself as a technology company rather than a transportation company. This loophole enables it to operate under the rules of a company that simply connects people with independent contractors who provide ride services rather than a company that provides this service, itself.

Ongoing Allegations Against Uber

In addition to these allegations, Uber faces claims that the company has been dishonest with customers about how it pays drivers. Uber advertises that customers do not have to tip drivers, since the company includes driver gratuity in the fare it charges. However, drivers claim they do not actually receive the gratuity included for them, furthering the evidence that Uber has been unfair to drivers.

In a recent motion for a class action lawsuit filed in San Francisco, the judge held that Uber would not be a viable business without drivers. Uber’s revenue does not come from its software distribution, but rather from the rides its drivers provide – thus making it a business with employees, not independent contractors. Uber has significant funds available for legal representation, making actions against it difficult to win. However, the company may have finally run out its luck.

Uber has agreed to pay an $84 million settlement to drivers in California and Massachusetts for its employee misclassification “mistake.” However, it is unknown if the company is stipulating to keep drivers as contractors for the settlement. Reporters claim that Uber may have the upper hand in negotiations, claiming that the same judge who ruled against them in San Francisco violated Uber’s First Amendment and Federal Arbitration Act rights.

This is an ongoing class action lawsuit against Uber, changing day by day as more details become available to the public. If you’re an Uber driver in California whom Uber has misclassified as an independent contractor, seek legal help from local workers’ compensation attorneys. You may have a case against Uber you can add to the ongoing class action lawsuit, and be eligible to receive compensation for lost wages and benefits.

Over the years, I have been told by many clients and others that they had been threatened with jail if they did not pay their bills. All of these people were Latino immigrants. In many cases, these people believed that they could be sent to jail for not paying their bills. As a result, many of them borrowed money from friends and family and sold cars and personal property to pay those bills.

YOU CANNOT BE SENT TO JAIL FOR OWING MONEY OR FOR NOT PAYING YOUR BILLS IN THIS COUNTRY.

So, why would creditors lie to Latino immigrants and threaten them with jail when they know that this is not true? Because these creditors know that too many Latino immigrants do not know the law and will not get legal advice to find out if it is true. It is possible that some of these immigrants come from countries where people can be put in jail for not paying their bills. But the main reason that creditors make false threats of jail is that it works for them. Each year creditors collect millions of dollars from Latino immigrants by lying to them and using false threats of jail.

Creditors can sue debtors in Civil Courts and, if they win, they can try to enforce the Judgment to collect the money they are owed. Creditors can use a Judgment to take money the debtor has in the bank or part of the debtor’s paychecks to repay the debt. But this legal procedure is not as effective and is very costly for creditors. And, even if the creditors spend the money for attorneys and court costs and ultimately get a court judgment declaring that the money is owed, they still have to try to collect the money.

If the debtors do not have money in the bank and are not buying a home, it is very difficult to ever collect on the judgment. And, if the judgment is for a large amount of money, debtors can avoid having money taking from their paychecks by changing jobs. It can be very difficult for creditors to find out who the debtor’s new employer is. And, creditors can also file for Bankruptcy.

Hospitals have been known to be especially aggressive and deceptive in trying to get their bills paid. One client reported that hospital representatives told him that he would not be allowed to leave the hospital until he and family members signed agreements to pay the bill. First of all, detaining someone against his will, for even a short period of time, depriving him of his liberty, is illegal. The debtor should have immediately tried to leave. If he was stopped from leaving, he could then sue the hospital and its representative and also press criminal charges against the representative that refused to let him leave.

In most cases, the hospital representatives will not actually try to stop the debtor patient from leaving. They know that it is against the law and they would not subject themselves or the hospital to the legal consequences of actually detaining someone. But they also know that many debtors do not know this and will sign the agreements, then make the payments, never knowing that they could not be legally detained at the hospital.

Remember, you cannot be sent to jail for owing money and you should not sign any documents until you have had them explained to you by someone you trust. You can and should insist on this. ¡NO SE DEJE! ®

There’s no longer any question about the gender bias against women in California’s workers’ compensation system. The system routinely discriminates against female workers, attributing work-related injuries to the pre-existing condition of “being a woman.” Plaintiffs claim, for example, that the workers’ compensation office dismissed claims of carpal tunnel syndrome due to work-related repetitive motion as the result of breastfeeding or menopause. Male workers suffering carpal tunnel, on the other hand, received benefits for their injuries without question.

Ongoing Class-Action Lawsuit in California

There is currently a class-action lawsuit against the California workers’ compensation system. A group of individual female workers, alongside the Service Employees International Union (SEIU) California State Council, are advocating for female workers’ rights. The plaintiffs state that the workers’ compensation system decreased disability benefits for women on the basis of “risk factors” associated with their gender or capacity to reproduce.

The lawsuit holds that the state has unfairly deprived women of rightful compensation, furthering the ongoing gender wage gap in America. The goal of the lawsuit is to put an end to discriminatory practices in California’s workplace and grant the wronged women compensation for their work-related injuries. The lawsuit brings up unconstitutional reductions of disability compensation for women that occur as the result of nothing other than stereotypes against women and the female body.

Proven Workers’ Compensation Gender Disparities

Claims in the current lawsuit include women who experienced unfair compensation deprivations based on presumptions about breast cancer and assumptions based on the outdated belief that a woman’s breasts are only valuable in that they nurse children. To this end, the plaintiffs assert that workers’ compensation gives women past childbearing age $0 for breast removal, while awarding men $25,000 for prostate removal. This significant disparity is proof of California’s broken and discriminatory system.

One woman whose medical evaluator proved her breast cancer was work-related received zero dollars in permanent disability from the loss of her breast. California uses an American Medical Association guide to make these decisions. The victim suffered scarring, numbness, and emotional distress after the removal of her breast, yet did not receive any money for disability. Workers’ compensation awards male counterparts, on the other hand, disability benefits for work-related prostate removal. California’s workers’ comp system states that prostate removal due to work-related cancer leaves a man 16-20% disabled.

Another plaintiff suffered reduced disability compensation because her qualified medical evaluation (QME) attributed 20% of her work-related carpal tunnel syndrome to her age and gender, stating that carpal tunnel is “almost ubiquitous” in the female population in her age bracket. Had this plaintiff been a man, she would not have suffered the 20% loss. In a similar case, a woman was pregnant when she made an appointment with her QME for work-related carpal tunnel. The QME reported her syndrome was the result of her pregnancy and breastfeeding, even though the plaintiff explained her symptoms appeared long before she was ever pregnant.

The Push Toward Reform

In workers’ compensation cases, gender stereotypes can cause serious damage. Women may endure financial hardship and lifelong physical, mental, and emotional damages without just compensation – all because of being born female. Women deserve awards for work-related injuries just like men do, and will continue to fight until they see a real system reform. The women involved in the class action are calling for a system-wide change, compensation for women the system has wronged in the past, and justice for future women in California’s workforce.

California’s workers’ compensation laws are long overdue for a reevaluation, and significant system changes are needed to put an end to gender discrimination. The current lawsuit may make important strides toward achieving a bias-free workers’ compensation system, but until then, California’s female workers must fight to receive equal benefits and rewards as their male counterparts.

A Federal jury in New York awarded Moises Méndez 3 million dollars in his case for unlawful retaliation by his employer, Westin Hotels. Mr. Méndez had worked at the hotel as a baker for 7 years. He complained to his supervisors verbally, and in writing, of being harassed and discriminated against by his coworkers. Mr. Méndez accused his coworkers of insulting and humiliating him and making fun of him because he is a Latino and of punching him in the face.

Mr. Méndez’ retaliation claim was based on the fact that his employer secretly installed a camera in his work area just 3 weeks after he complained of the harassment and discrimination. His employer testified that the camera was installed to protect him, and to determine the identity of the alleged harassers. Mr. Méndez’ attorney effectively pointed out that all of the film was directed only on Mr. Méndez working in his area and that he already knew and reported the identity of the harassers. Mr. Méndez’ lawsuit also contained a claim of harassment because his work place was an unlawful “hostile environment”.

Mr. Méndez’ employer never made any offer to settle the case. A total of 22 witnesses testified in a trial that lasted 3 weeks. The Federal jury awarded Mr. Méndez 1 million dollars for pain and suffering and 2 million dollars in punitive damages to punish his employer for unlawfully retaliating against him after he exercised his right to complain of harassment and discrimination.

THIS CASE WAS DECIDED UNDER FEDERAL LAW WHICH APPLIES IN EVERY STATE. CALIFORNIA, LIKE EVERY OTHER STATE, HAS SIMILAR STATE LAWS TO PROTECT EMPLOYEES FROM EMPLOYER ABUSE.

Unlawful employer retaliation includes any adverse action taken against an employee for filing a complaint or for supporting another employee’s complaint of a violation of rights. Like Mr. Méndez’ lawsuit, the most common claim is that the employee was first the victim of harassment and discrimination and that the employer then changed his employment situation to punish him for complaining. The illegal retaliation often includes a change in job duties or location, a change of title or position, a reduction in salary or even permanent dismissal.

Unlawful employer retaliation is considered a serious violation of an employee’s civil rights. In fact an employee is entitled to compensation for retaliation even if the actions he originally complained of were not illegal. The law does not prohibit simple teasing or other common insults that are not serious. The actions must be serious enough to change the conditions of the work environment. Nonetheless, retaliation for complaining about such conduct is still illegal.

Latinos should take notice of this case and many others which demonstrate that employees in this country have powerful rights regardless of their immigration status. They are of no benefit however unless the victims promptly take action by consulting an attorney and cooperating in the preparation and presentation of the case. ¡NO SE DEJE! ®

Distractions on the job have become more and more common with the advent of mobile technologies and smartphones, with assistance from apps like Candy Crush and Pokémon GO. The hype that surrounded Pokémon GO was followed quickly by news reports of injuries including vehicles striking pedestrians playing the game, drivers using the app behind the wheel, and employees chasing Pokémon at work. Now, employers and employees are asking if workers’ compensation covers injuries caused by distraction.

The Risks of Distraction to Employees

Employees across every industry can suffer damages due to distraction on the job, from tripping and falling on an obstacle in the office to more dire accidents involving heavy equipment in the construction and manufacturing industries. When employees operate company vehicles or pieces of machinery while texting, emailing, scrolling through social media, or playing Pokémon GO, they risk injuring themselves and those around them.

For working professionals, on-the-job distractions are no game. The potential impacts that mobile apps and other distractions can cause employees include safety risks, customer management, fleet safety, and data privacy risks. An employee could cause serious harm, including crashing a company vehicle, striking a pedestrian, making errors on an assembly line, and more. When the worst happens, employees need to understand whether workers’ compensation provides coverage for medical costs, lost wages, and disability benefits.

Workers’ Compensation in California

The point of the workers’ compensation system across the nation is to help injured workers recover from accidents that occur at the workplace or while acting within a job’s capacity. A worker can file for workers’ compensation for any injury while on the job, without having to prove an employer’s negligence to receive money for medical bills and other damages. When an employee is at fault for the injury, however, the rules can change.

Depending on the circumstances of your workplace injury, the courts may rule either way. Workers’ compensation typically operates on a no-fault system, meaning that an injured worker’s own negligence is not considered. In most cases, workers’ compensation simply covers the injured employee, even if Pokémon GO or another cause distracted him or her and directly caused the accident.

However, one notable exception is that under federal and California labor laws, workers’ compensation does not cover any injuries resulting from willful negligence or horseplay. If an employee violates an employer’s safety rules or performs employment duties while intoxicated, distracted, or otherwise indisposed, workers’ compensation will not necessarily cover resultant injuries. If an employer and an employee have different accounts about what happened, and who was or was not negligent at the time of the accident, the employer can go to court.

If the employer has evidence that the injured employee’s accident was the result of a distraction such as Pokémon GO, he or she has a horseplay or negligence defense. In these cases, the employer can argue the injuries only occurred because of the employee’s carelessness or goofing off, and was in no way related to an employer mistake. If the employer has enough evidence to support this claim, such as surveillance videos of the accident or eyewitness testimonies, the courts may rule against the distracted employee.

Distractions on the job can go both ways when it comes to workers’ compensation coverage. Arm yourself with a skilled Orange County workers’ compensation attorney if your employer tries to argue against you in a workers’ compensation claim. California requires employers to carry workers’ compensation insurance, regardless of the size of your company. Report your accident to your employer immediately, seek medical attention for injuries, and then file a claims report. An attorney can help you with denied claims or cases where you were partially at fault.

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